Pubdate: Wed, 14 Dec 2005
Source: Anderson Valley Advertiser (CA)
Column: Cannabinotes
Copyright: 2005 Anderson Valley Advertiser
Author: Fred Gardner
Bookmark: (Bryan Epis)
Bookmark: (Cannabis - California)
Bookmark: (Cannabis - Medicinal)


The judge who sentenced Bryan Epis to 10 years in federal prison now
realizes that Epis was the victim of prosecutorial misconduct,
according to Brenda Grantland, the lawyer handling Epis's appeal.

Epis, 38, was convicted in 2002 of conspiracy to cultivate more than
1,000 cannabis plants. He was granted bail in August 2004, after
serving more than 25 months. The government is intent on sending him
back to prison.

Grantland charges that at Epis's trial, Assistant U.S. Attorney Samuel
Wong misled the jury and U.S. District Judge Frank Damrell about a
crucial piece of evidence -a spreadsheet Epis had drafted in early
1997 when he briefly contemplated opening a dispensary in Silicon
Valley. Epis's 16-page business plan for the Silicon Valley dispensary
was on the computer that DEA agents confiscated in June, '97, along
with 485 plants, when they raided the 15'-by-15' grow-site Epis
maintained in his basement in Chico. Epis said he had been growing for
himself and four other documented medical users, and providing a small
surplus (for which he was never remunerated) to a dispensary called
Chico Medical Marijuana Caregivers (CMMC).

The U.S. Attorney offered Epis a four-year prison term if he'd plead
guilty to criminal cultivation. When Epis refused, a
conspiracy-to-grow-more-than-a-thousand-plants charge was added (by
factoring in plants he planned to grow in the future). None of his
alleged co-conspirators were charged.

When the case finally came to trial in 2002, the prosecution took a
one-page spreadsheet from the Silicon Valley plan and introduced it as
evidence of Epis's financial goals for his basement garden in Chico.
Wong referred to Epis's "marketing plan" in his opening statement and
a DEA agent and a former Butte County Sheriff's deputy made much of
the "marketing plan" in their testimony.

Epis himself didn't recognize the out-of-context excerpt of a document
he'd created more than five years earlier, and he had a hard time on
the stand trying to explain it. Epis had not read through the exhibits
the prosecution provided the defense as part of pre-trial "discovery"
proceedings, and apparently neither had his lawyer, Tony Serra. Epis
studied a blow-up of the spreadsheet on the courtroom wall and said he
thought it might be a projection of expenses and costs for a group of
dispensaries seeking to bring the price down to $20/eighth-ounce.

The spreadsheet undermined Epis's claim that his cannabis cultivation
was not geared towards moneymaking. Wong asked if the spreadsheet was
in fact Epis's "marketing plan," and when Epis said no, he introduced
into evidence two more pages of the (Silicon Valley) proposal that
referred to the spreadsheet as a "marketing plan." The jury took only
four hours to find Epis guilty of conspiracy and cultivation (within
1,000 feet of Chico Senior High School). At a sentencing hearing in
October 2002, Wong portrayed Epis as "no different than any other drug
trafficker that this court has seen and sent to jail."

Epis is now 38. At 17 he was in a near-fatal car crash that left him
with two compressed vertebrae.

Prescription painkillers sapped his energy; marijuana enabled him to
function.  He got a degree in electrical engineering at Chico State,
then a law degree from Cal Northern School of Law. (Epis drafted the
elaborate Silicon Valley proposal as an exercise of sorts, putting to
use what he'd learned in law school about how to write a business
plan.) He never practiced law and doesn't expect to.

Damrell sentenced Epis to 10 years, the mandatory minimum, and denied
him bail pending appeal.

The Sacramento Bee pinpointed Wong's triumphant tactic: "The
prosecutor argued that Epis's 'lame story about planning to make only
$10 an hour' from the work he did for the dispensary is belied by
profit projections on documents he created and which were found in a
search of his home. 'What he saw in Proposition 215 was a license to
grow and market marijuana to make money,' Wong told Damrell. 'Every
time he wrote down something about marijuana, he wrote dollar signs
next to it.'"

Epis served 25 and a half months in federal custody.

After the Ninth Circuit Court of Appeals ruled in December '03 that
Angel Raich and Diane Monson could cultivate cannabis for medical use
within California, Grantland was able to get Epis out on bail. (It
took until August '04.) The Supreme Court's ruling against
Raich-Monson in June '05 might have triggered his prompt return to
prison if not for the appeal Grantland had mounted in connection with
Wong's misconduct.

Belated Discovery

The night after he'd testified, Epis realized that the damning
spreadsheet had been part of his Silicon Valley business plan. A
frantic search of his papers turned up most of the 16 pages -but not
the spreadsheet itself. Serra submitted the incomplete version to the
court as Defense Exhibit A, but Damrell did not accept that the
unstapled, out-of-order pages created in WordPerfect were part of the
same document as the spreadsheet, which was in color and created in
Excel. Serra asked Wong if the Silicon Valley plan had been provided
on discovery and Wong replied, according to the transcript: "the
two-page document and the one-page document were turned over in
discovery."  During a recess Serra asked Wong if he could look through
the discovery materials (his own set being back in San Francisco), and
Wong would not extend the courtesy.

In early 2003, Grantland began reviewing the case file. It was
incomplete, she realized.

She was told by the court reporter that all the government exhibits
had been returned to Wong. The court reporter didn't recall there
being any defense exhibits.

Grantland was told by Serra that during the move of his office from
Pier Five to North Beach, various items had been misplaced. (This a
tale of prosecutorial misconduct but the pre-Grantland defense doesn't
come off covered with honor.) Among the items Grantland couldn't find
was the marked copy of Defense Exhibit A that Serra tried to introduce
as evidence at trial.

Epis, from prison, "kept insisting that the whole proposal had been
among the discovery materials," Grantland says. Also, Epis realized
belatedly, a complete version would exist on his confiscated computer.

Grantland decided to continue searching and, in a carton that appeared
to be unrelated to the case, she found a red notebook full of articles
about medical marijuana and... the entire Silicon Valley proposal. The
notebook contained 150 pages that DEA agents had printed out from
Epis's computer and turned over to the defense in discovery.

Also included was a cover letter to Serra's office from Nancy Simpson,
the assistant U.S. attorney who preceded Wong on the case, stating
that DEA Agent Ron Mancini was in charge of the prosecution evidence.

In October, 2003, Damrell conducted a special "Rule 10(e) hearing" to
resolve discrepancies in the record.

Wong protested Grantland's substitution of the Silicon Valley proposal
she'd found among the print-outs for the partial version Serra tried
to submit as evidence. Grantland protested Wong's refusal to provide
the entire document and his original attempt to mislead the court
about the nature of the spreadsheet.  The focus of a 10(e) hearing is
narrow: deciding whether challenged documents should be included or
excluded from the record that the appeals court will review.

New documents cannot be added during a 10(e) hearing. Wong tried to
keep the new material out but Damrell said he'd allow it "for the
purposes of this hearing only."  Wong denied that the pages describing
the business climate in San Jose were from the same document as the
spreadsheet "marketing plan" introduced at trial as proof of Epis's
criminal activity in Chico.  "Wong is lying to you as we speak,"
Grantland told Damrell. "The court has a duty to correct prosecutorial
misconduct and false testimony at the moment it happens."  Damrell
made a finding that Wong's version of Defense Exhibit A -scrambled and
missing several pages-was the real one for purposes of the record.

Grantland was dismayed.

In June 2004 the Ninth Circuit Court of Appeals heard oral arguments
on the case. Wong opened himself up for questioning on the spreadsheet
maneuver by saying "Miss Grantland falsely accuses me of prosecutorial
misconduct." All three judges proceeded to examine him relentlessly.
Soon thereafter Grantland filed a bail motion for Epis which the Ninth
Circuit granted without asking Wong to respond.

The appeals court also remanded Epis's case to Damrell for
resentencing and retained jurisdiction over the appeal.

Damrell heard oral arguments on the re-sentencing motion last week
(12/5/05) Here's Grantland's account:

"While I was sitting waiting for the judge to take the bench, AUSA
Samuel Wong came up to me and handed me a memo which said: 'DEA
Special Agent Brian Nehring is the new DEA agent assigned to the Bryan
Epis case.  Special Agent Nehring informs me that one of the agents
assigned to this case after DEA Special Agent Ron Mancini's departure
mistakenly allowed the documents seized from Bryan Epis' home to be
destroyed.  I am awaiting my receipt of reports on the destruction of
the documents and will forward them to you upon my receipt.  On behalf
of the United States, I sincerely apologize for this error.'

"Of course I was livid.  We have been trying to get access to the 10
or 20 boxes (or more) of stuff they took from Bryan's house in order
to look for more evidence of government wrongdoing.  Plus we needed
his medical records because the government is disputing that Bryan
had a legitimate need for medical marijuana.

"When the judge called the case, he asked me to start by telling him
why I thought we needed an evidentiary hearing.  I told him we needed
to resolve the dispute over the two government exhibits which are the
heart of our prosecutorial misconduct charge, and which the government
is still asking the court to rely on in sentencing Bryan. (We now have
evidence in the record to show that the documents were  excerpts from
a totally irrelevant proposal for a dispensary in Silicon Valley that
was never started, and that the two agents lied when they said the
exhibits showed that Bryan actually made or expected to make -off the
tiny garden in his basement- $4 million dollars a week, or some such
nonsense.  That's what Wong argued in his opening statement, so it's
clear that he coached them to say that.)

"And then I told the judge about the memo I got from Wong today,
saying the evidence had been destroyed except for the government's
exhibits.  The judge couldn't believe that could happen and wanted to
hear about it from Wong.   Wong said, yes it is unfortunately true
that the evidence was inadvertently destroyed.  Judge Damrell said
[I'm paraphrasing]: 'That can't happen.  I've never in my career
known that to happen.  Somebody has to give the order to destroy
evidence.  I'm not accusing you. Mr. Wong, but I can't see how this
could have happened inadvertently.'  Wong said they mistakenly thought
the case was closed.  Damrell said 'How could they mistakenly decide
the case was closed? Especially a case like this?  Someone would have 
to tell them

"After that, Wong's credibility pretty much shredded by his own lies
and corruption, the judge granted my request to depose the officers
who were responsible for safekeeping of this evidence and the decision
to destroy it.  He gave Wong two weeks to submit a declaration
explaining the circumstances of the destruction, plus an inventory of
all the evidence that was seized.  I have an opportunity to reply
after that, and we set a status hearing for January 17.  I guess I'll
be conducting the depositions in the first half of January.

"Judge Damrell also agreed to give us an evidentiary hearing on our
prosecutorial misconduct claims, at a future date, to be set later.
Wong of course is claiming that Bryan wasn't truthful in his
debriefing last Monday, so he'll get to put on those claims at the
evidentiary hearing.  The judge said the new destruction of evidence
issue might become part of the evidentiary hearing, but he would
decide after he learns more about it.

"At the Rule 10(e) hearing, Judge Damrell was agreeing with Wong that
these are different documents, and that Wong really hadn't lied about
it.  Today, when Wong tried to tell Damrell that we had already been
through this at the Rule 10(e) hearing and the judge had concluded
that these were different documents, Judge Damrell said something like
'We didn't have a full hearing on this at the 10(e) hearing because it
was beyond the scope. There was a lot of confusion then about these
documents.  Now I'm looking at these documents side by side, and
they're all the same document.'  Wong argued with him, saying... Gov.
Ex. 27 [the one-page spreadsheet] related to the Chico grow. Judge
Damrell said 'It's obvious now that they're all from the same document.'

"Another good sign was, Judge Damrell was asking me what my research
showed about the kinds of relief he could give us in this weird
mid-appeal remand posture, if he were to find prosecutorial

"After the hearing Bryan and I went to the probation office to read
the 330 letters the court has received so far asking for leniency in
Bryan's case.  (They're still trickling in, the probation officer
says.)   It took hours and we only got halfway through.  We'll have to
read the rest next time.  It was very draining.  There were many sad
stories in there, and many people who said poignant things.  And some
funny ones... The probation officer who has read the entire 330 said
that she didn't recognize any of the ones I brought in today.  So the
total number of letters is probably somewhere between 350-370!

"Thanks for all your support.  Most of all it shows the public cares
about this travesty.  And that a lot of people are watching the
government's conduct here." 
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MAP posted-by: Richard Lake